Lowe v. State
2016 Ark. App. 389
| Ark. Ct. App. | 2016Background
- Appellant Brian Lowe was charged with one count of rape (Class Y felony) for alleged sexual acts with a 6‑year‑old neighbor; charging statute required sexual intercourse or deviate sexual activity with a person under fourteen.
- The juvenile (B.B.) testified that Lowe made him stroke Lowe’s penis and forced oral sex in the bathroom, and that Lowe put his mouth on the juvenile’s penis in the bedroom.
- Lowe admitted that the juvenile had touched his genitals but denied any oral sex or penile penetration of the juvenile’s mouth; his trial testimony matched a prior police interview video except on the penetration allegation.
- At a bench trial the court denied Lowe’s motion to dismiss, found the juvenile credible and Lowe not credible, and concluded the juvenile’s uncorroborated testimony established deviate sexual activity (penetration, however slight).
- Lowe was sentenced to 25 years in the Arkansas Department of Correction and appealed, arguing insufficiency of evidence (penetration not proven) and erroneous credibility findings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lowe) | Held |
|---|---|---|---|
| Sufficiency of evidence to prove deviate sexual activity (penetration of mouth) | Juvenile’s testimony that he put his mouth on Lowe’s penis (and Lowe put his mouth on the juvenile’s penis) is sufficient to show penetration however slight | Juvenile said only that the penis was “touched” and did not testify that Lowe’s penis entered his mouth; no corroboration of penetration | Affirmed — juvenile’s testimony was sufficient for a rational fact‑finder to find slight penetration occurred; substantial evidence supports conviction |
| Trial court’s credibility finding rejecting Lowe’s testimony | Credibility is for the fact‑finder; the juvenile’s account contradicted Lowe and supported conviction | Lowe’s testimony matched his recorded statement and thus should have been credited; State didn’t prove his testimony was not credible | Affirmed — fact‑finder may accept or reject testimony; appellate court will not overturn credibility determinations absent impossibility or inherent improbability |
Key Cases Cited
- Neal v. State, 375 Ark. 389, 291 S.W.3d 160 (Ark. 2009) (appellate court may rely on record testimony even if trial court misstated that testimony)
- Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (Ark. 2001) (substantial‑evidence standard explained; credibility determinations left to fact‑finder)
- Conte v. State, 2015 Ark. 220, 463 S.W.3d 686 (Ark. 2015) (testimony will be disregarded on appeal only if inherently improbable, physically impossible, or clearly unbelievable)